Case Name: Sherry Seitzinger aka Sherry Ross v. Richard M. Ladden
Case No.: 2017-CV-313092

Motion for Summary Judgment, or in the Alternative, Summary Adjudication to the Complaint by Defendant Richard Ladden

Factual and Procedural Background

On March 18, 2014, defendant Richard M. Ladden (“Ladden”) filed a lawsuit against plaintiff Sherry Seitzinger aka Sherry Ross (“Seitzinger”) (self-represented) asserting a claim for malicious prosecution (“Underlying Action”). (Complaint, ¶ 3.)

Ladden purportedly served Seitzinger with summons and complaint in the Underlying Action on April 23, 2014 by substitute service on an individual named Dan Martin, 55 years old with gray hair, 5’8” and 170 pounds, the occupant at 7392 Crews Road in Gilroy. (Complaint, ¶ 4.) However, service of process did not occur as described. (Id. at ¶ 5.) The address above is the home of Seitzinger’s son, Daniel Seitzinger, but he was not at home at the time of purported service and nobody was present to receive copies of the summons and complaint. (Ibid.) At the time of purported service, Daniel Seitzinger was 6’0”, 250 pounds, 47 years old with dark blond hair which does not match the process server’s description. (Id. at ¶ 6.) Seitzinger never received copies of the summons and complaint by personal delivery or substitute service. (Complaint, ¶10.)

On July 21, 2014, default judgment was entered in the Underlying Action. (Complaint, ¶ 11.) Seitzinger first learned of the Underlying Action when default judgment had been entered against her. (Id. at ¶ 13.)

On July 14, 2017, plaintiff Seitzinger filed the instant action against defendant Ladden asserting causes of action for: (1) Independent Action in Equity to Set Aside and Vacate Judgment for Lack of Personal Jurisdiction; (2) Independent Action in Equity to Set Aside and Vacate Judgment for Extrinsic Fraud or Mistake; and (3) Independent Action in Equity for Violations of the California and Federal Constitutions.

On November 6, 2017, defendant Ladden filed his answer to plaintiff Seitzinger’s Complaint.

On July 6, 2018, defendant Ladden filed a motion for judgment on the pleadings. The Court granted the motion with respect to the second and third causes of action with leave to amend. The motion was denied as to the first cause of action. Plaintiff Seitzinger did not file an amended pleading and thus the first cause of action is the only viable claim remaining in this action.

Motion for Summary Judgment

Currently before the Court is defendant Ladden’s motion for summary judgment to the Complaint. (Code Civ. Proc., § 437c.) In the alternative, Ladden requests summary adjudication of his affirmative defenses. Plaintiff filed written opposition. No trial date has been set.

Seitzinger’s Evidentiary Objections

As a preliminary matter, plaintiff Seitzinger asserts various objections in her separate statement in support of her opposition to the motion.
Written evidentiary objections must be made in a separate document and must not be re-stated or re-argued in the separate statement. (Cal. Rules of Court, rule 3.1354(b).) Objections must identify the specific item of evidence that is objectionable. (Ibid.) Here, plaintiff Seitzinger improperly asserts objections in her separate statement that she did not include in a separate document containing her evidentiary objections. Therefore, plaintiff Seitzinger’s evidentiary objections do not comply with California Rules of Court, rule 3.1354(b).

In addition, evidentiary objections must be accompanied by a proposed order that complies with the requirements set forth in California Rules of Court, rule 3.1354(c). The rule requires an objecting party to file two separate documents, objections and a separate proposed order, both in one of the approved formats set forth in the rule. (See Cal. Rules of Court, rule 3.1354(b) and (c).) Here, plaintiff Seitzinger failed to comply with the rule as she did not submit a separate document setting forth her evidentiary objections or a proposed order as provided in the rules of court. Even though plaintiff Seitzinger is now representing herself in this action, she is still required to comply with any applicable court rules and procedures. (Kabbe v. Miller (1990) 226 Cal.App.3d 93, 98; Bistawros v. Greenberg (1987) 189 Cal.App.3d 189, 193 [self-represented party “held to the same restrictive procedural rules as an attorney”].)

Accordingly, the Court declines to rule on the objections based on the above-described defects. (Vineyard Spring Estates v. Super. Ct. (2004) 120 Cal.App.4th 633, 642 [trial courts only have duty to rule on evidentiary objections presented in proper format].)

Legal Standard

Any party may move for summary judgment. (Code Civ. Proc., § 437c, subd. (a); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).) The motion “shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c); Aguilar, supra, at p. 843.) The object of the summary judgment procedure is “to cut through the parties’ pleadings” to determine whether trial is necessary to resolve the dispute. (Aguilar, supra, at p. 843.)

The “party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact…” (Aguilar, supra, 25 Cal.4th at p. 850; see Evid. Code, § 110.) “A prima facie showing is one that is sufficient to support the position of the party in question.” (Aguilar, supra, at p. 851.) A defendant moving for summary judgment may satisfy its initial burden either by producing evidence of a complete defense or by showing the plaintiff’s inability to establish a required element of the case. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, supra, at p. 853.)

If a moving defendant makes the necessary initial showing, the burden of production shifts to the plaintiff to make a prima facie showing of the existence of a triable issue of material fact. (Code Civ. Proc., § 437c, subd. (p)(2); see Aguilar, supra, 25 Cal.4th at p. 850.) A triable issue of material fact exists “if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar, supra, at p. 850, fn. omitted.) If the plaintiff opposing summary judgment presents evidence demonstrating the existence of a disputed material fact, the motion must be denied. (Id. at p. 856.)

Throughout the process, the trial court “must consider all of the evidence and all of the inferences drawn therefrom.” (Aguilar, supra, 25 Cal.4th at p. 856.) The moving party’s evidence is strictly construed, while the opponent’s is liberally construed. (Id. at p. 843.)

First Cause of Action: Independent Action in Equity to Set Aside and Vacate Judgment for Lack of Personal Jurisdiction

As stated above, the only remaining claim is the first cause of action for Independent Action in Equity to Set Aside and Vacate Judgment for Lack of Personal Jurisdiction.

“A judgment absolutely void may be attacked anywhere, directly or collaterally whenever it presents itself, either by parties or strangers. It is simply a nullity, and can be neither a basis nor evidence of any right whatever. A void judgment [or order] is, in legal effect, no judgment. By it no rights were divested. From it no rights can be obtained. Being worthless in itself, all proceedings founded upon it are equally worthless. It neither binds nor bars any one.” (OC Interior Services, LLC v. Nationstar Mortgage, LLC (2017) 7 Cal.App.5th 1318, 1330 (OC Interior Services, LLC) [internal citations and quotation marks omitted].)

“When a court lacks jurisdiction in a fundamental sense, such as lack of authority over the subject matter or the parties, an ensuing judgment is void.” (OC Interior Services, LLC, supra, 7 Cal.App.5th at p. 1330.) “[C]ompliance with the statutory procedures for service of process is essential to establish personal jurisdiction. [Citation.] Thus, a default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void. [Citation.]” (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1444.) Whether the lack of jurisdiction appears on the face of the judgment roll, or is shown by extrinsic evidence for a judgment that appears valid on its face, “in either case the judgment is for all purposes a nullity—past, present and future.” (City of Los Angeles v. Morgan (1951) 105 Cal.App.2d 726, 732.)

“A defendant is always free to ignore the judicial proceedings, risk a default judgment, and then challenge that judgment on jurisdictional grounds in a collateral proceeding.” (Yu v. Signet Bank/Virginia (1999) 69 Cal.App.4th 1377, 1386 [citing Insurance Corp. v. Compagnie Des Bauxites (1982) 456 U.S. 694, 706].)

In determining the issues that a motion for summary judgment must address, courts look to the pleadings. The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues and to frame the outer measure of materiality in a summary judgment proceeding. (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381.)

Here, plaintiff Seitzinger alleges she was not served with the lawsuit in the Underlying Action. (Complaint, ¶ 15.) She claims she did not have notice of the lawsuit against her by defendant Ladden. (Id. at ¶ 16.) Defendant Ladden allegedly served plaintiff Seitzinger via substitute service. (Id. at ¶ 17.) Plaintiff Seitzinger however alleges she was never served with the summons in the Underlying Action and thus the court never retained jurisdiction over her. (Id. at ¶ 18.) She therefore claims the court entered a default judgment against her without the authority to do so. (Id. at ¶ 20.)

As stated above, the critical allegation in support of the first cause of action is that plaintiff Seitzinger was not served with the lawsuit in the Underlying Action. On summary judgment, defendant Ladden submits evidence showing that he served plaintiff Seitzinger with the lawsuit in the Underlying Action via substitute service. (See Ladden’s Separate Statement of Undisputed Facts at Issue #2 [Nos. 1-2, Exs. A1, A2, B] and Issue #3 [Nos. 1, 5, 7].) In doing so, he presents evidence that substitute service of Dan Martin was initiated at plaintiff Seitzinger’s publicly registered address. (Id. at Issue #2 [Nos. 1-2] and Issue #3 [Nos. 1, 3, 5].) According to defendant Ladden, Martin was the plaintiff’s son and a tenant at her address and thus constituted a person whose relationship made it more likely than not that he would deliver process to her. (Id. at Issue #3 [Nos. 7-8]; see Bein v. Brechtel-Jochim Group, Inc. (1992) 6 Cal.App.4th 1387, 1393 [“Service must be made upon a person whose relationship with the person to be served makes it more likely than not that they will deliver process to the named party.”].) Also, in executing substitute service, there is evidence that the summons and complaint in the Underlying Action were mailed to plaintiff’s Seitzinger’s publicly registered address on April 23, 2014. (Id. at Issue #2 [No. 2] and Issue #3 [Nos. 3, 5].) As defendant Ladden has presented evidence showing that plaintiff Seitzinger was served with the lawsuit in the Underlying Action, the Court finds he has met his initial burden on summary judgment. The burden now shifts to plaintiff Seitzinger to raise a triable issue of material fact.

In opposition, Plaintiff submits a memorandum of points and authorities and a separate statement. While Plaintiff disputes many of the points raised by defendant Ladden, she fails to cite to any evidence in her separate statement. (See Cal. Rules of Court, rule 3.1350(h) [if evidence in a separate statement is “disputed,” the word should immediately be followed by a reference to the evidence demonstrating that the fact is disputed].) Also, relying on her points and authorities, plaintiff Seitzinger argues she was not served with the lawsuit in the Underlying Action. (See OPP at pp. 1-2.) However, memoranda of points and authorities are not evidence and thus cannot raise a triable issue of fact to defeat a motion for summary judgment. (Brehm Communities v. Super. Ct. (2001) 88 Cal.App.4th 730, 735; see Smith, Smith & Kring v. Super. Ct. (1997) 60 Cal.App.4th 573, 578 [matters set forth in unverified statement of facts and in memoranda of points and authorities are not evidence].) In addition, plaintiff Seitzinger claims she has attached her declaration along with declarations from Martin and Robert Forde in support of her opposition. (See OPP at pp. 1, 9.) These declarations however were not submitted with the opposition and thus they are not before the Court. Finally, plaintiff Seitzinger provides a copy of Martin’s driver’s license, various receipts of purchases made, and a letter from the Gilroy post office. Such evidence is immaterial as it does not address the issue of whether plaintiff Seitzinger was served with the lawsuit in the Underlying Action.

Based on the foregoing, the Court finds that plaintiff Seitzinger fails to provide admissible evidence to raise a triable issue of material fact to defeat the motion.

Disposition

The motion for summary judgment is GRANTED.